Update on the Employer's Obligation to Justify a Dismissal (Upon Request) and the Concept of Manifestly Unfair Dismissal

Prior to 1 April 2014, employers were not obliged to justify dismissals. Since the entry into force of national Collective Bargaining Agreement No. 109 (hereinafter "CBA No. 109") on 1 April 2014, however, employers must justify the dismissal of both white- and blue-collar employees, if the employee so requests. If the employer does not do so, it will be ordered to pay a fine corresponding to two weeks of the employee’s salary and benefits.

In addition, the employee may claim that the dismissal is manifestly unfair. A dismissal will be deemed manifestly unfair if the justification provided is unrelated to the employee’s attitude or performance or to the employer's operational requirements and if a normal and reasonable employer would not have taken the same decision. If the dismissal is found to be clearly unreasonable, the employer may be ordered to pay damages equal to 3 to 17 weeks’ salary and benefits. The employee may claim additional damages in a civil suit.

Recent case law

Two years after the entry into force of CBA No. 109, only a very limited number of judgments have been rendered on is provisions mostly in Flanders. Please find below a brief summary of these decisions along with some practical advice.

  • In October 2015, the Leuven Labour Tribunal heard a case involving the dismissal of an employee whose absences due to disability disrupted and adversely affected the employer's organisation. The employee allegedly also had problems with certain of his co-workers. The tribunal held that it is reasonable for a company to strive for economic efficiency and profitability and that the non-profitability of the employee justified his dismissal based on the business's operational needs. His dismissal was not manifestly unfair.
  • The Antwerp Labour Tribunal heard in December 2015 the case of an employee who was dismissed due to a period of disability lasting more than 60 days during a busy time, which allegedly increased the workload of others. Furthermore, the employer had heard that the employee intended to take holidays upon expiry of his period of disability. The tribunal ruled that the employer had not submitted sufficient proof of an increased workload due to the employee's absence or that the employee would take holidays immediately after his period of disability. More specifically, the tribunal found that the employer had not sufficiently proven that the employee's dismissal was an effective solution to the workload problem. His dismissal was not based on the company's operational needs and, moreover, a normal and reasonable employer would not have proceeded in this way. The employer was ordered to pay the employee damages equal to 8 weeks' salary and benefits.
  • In January 2016, the Brussels Labour Tribunal heard the case of an employee who was dismissed for serious cause after allegedly failing to respond to numerous requests by the employer for a justification for the employee's absences. The employee won before the tribunal on the question of serious cause, since the absences were in fact related to a disability, confirmed by his doctor. On the claim for manifestly unfair dismissal, the tribunal ruled that the employer could not prove that the employee's absences were unjustified or that it had in fact requested a justification on multiple occasions, which the employee never provided. Therefore, the reasons cited for the employee's dismissal were not related to his attitude or performance or to the operational needs of the business. Moreover, a normal and reasonable employer would not have taken such a hasty decision. The employee was awarded 10 weeks' salary and benefits.
  • The Antwerp Labour Tribunal ruled in January 2016 on the case of an employee whose unacceptable behaviour led to incidents with co-workers and clients. The employer was able to prove this behaviour by e-mails from other employees and written complaints from clients. The tribunal ruled that the employer had submitted sufficient evidence of the concrete reasons for the employee's dismissal and that a normal and reasonable employer would have taken the same decision. The employee's claim was rejected.
  • Finally, in March 2016, the Brussels Labour Tribunal heard the case of a financial director who was dismissed for serious cause, namely undermining the authority and credibility of the company's managing director on repeated occasions. The employee won on the issue of dismissal for serious cause and claimed compensation for manifestly unfair dismissal. The tribunal ruled that her dismissal was clearly related to her behaviour (and her direct communication style), since she had behaved inappropriately in front of the managing director. However, even if the facts did not justify dismissal for serious cause, it was not manifestly unfair. The employer was not ordered to pay damages.

In practice

The following lessons can be drawn from these judgments:

  • Always gather enough evidence to prove that the dismissal is related to the employee's attitude or performance or to the business's operational needs. Even if CBA No. 109 strictly regulates the burden of proof, the tribunals appear to expect the employer to be able, in every case, to justify the dismissal with sufficient evidence.
  • The tribunals often refer to a "normal and reasonable" employer, which gives employers a certain amount of leeway. Such discretionary authority is provided for by the CBA, but we are pleased to see that, in practice, the tribunals respect the employer's autonomy.  
  • As for the level of damages awarded (3 to 17 weeks' salary and benefits), greater clarity on the factors to be taken into account by the tribunals is needed. At present, the criteria used to determine the damages awarded are insufficiently clear. Additional case law will undoubtedly shed some light on this matter.